did an Employment Tribunal judge err when he considered the ET3 as a whole in assessing an application for costs by the Claimant under ET Rule 76(1)(b)?

Yes, according to HHJ Tayler in the recent EAT case of Opalkova v Acquire.

The Claimant’s ET1 contained 6 claims. She was successful with 3 of these at Tribunal and subsequently applied for a Preparation Time Order (PTO) under r.76(1)(b). Under this rule, a Tribunal can make a costs order where it considers that ‘any claim or response had no reasonable prospect of success’. In assessing this application in Opalkova v Acquire, EJ Hawksworth considered the Respondent’s response as a whole or, to use his words, ‘in the round’, and on this basis dismissed the application.

The Claimant appealed, contending that the responses to each of the 6 claims should be individually considered and evaluated for prospects of success when assessing the PTO application. She argued that the 3 unsuccessful defenses had no reasonable prospect of success.

What was key here was the wording of r.76(1)(b). Specifically, what is meant by the word ‘claim’. ET Rule 1 defines ‘claim’ as ‘any proceedings before an Employment Tribunal making a complaint’. The Rules go on to define complaint as ‘anything that is referred to as a claim, complaint, reference or application.’

Therefore, said HHJ Tayler, ‘in Rule 76 where reference is made to a response having no reasonable prospect of success, this means the response made to each of the claims brought by the Claimant in the ET1.’ HHJ Taylor went on to say that ‘it does not make sense to consider whether an ET3 as a whole has reasonable prospects of success where it is responding to a number of different causes of action, to some of which there may be a valid defence, whereas the defence to others may have no reasonable prospect of success.’

The EAT set out 3 key questions for Tribunals to consider when assessing PTO’s from Claimant’s moving forward:

• Objectively, did the response have no reasonable prospect of success when submitted or at a later stage?
• At that stage did the Respondent know that was the case?
• If not, should the Respondent have known?

The case serves as a reminder to claimants and respondents alike to consider whether every element of their claim / response has a reasonable prospect of success before putting it forward.

This blog was written by Jack Dooley, Paralegal at didlaw.